What Kagan should have said

There is something refreshing about Tom Coburn, the very conservative senator from Oklahoma who is one of the few in the chamber who is not a lawyer. In listening to Coburn question Supreme Court nominee Elena Kagan, I was finally able to articulate what has been nagging at me like a fresh mosquito bite.

Coburn cut to the chase: What would you say, he asked Kagan, to lead use to believe that you won't let your political views to sway your decisions as a judge? Kagan tap danced around the question, relying once again on her assertion that only law must dictate results. I, for one, believe her. But here's what I wish she would have said:

I can't and won't give anyone a guarantee about what approach I will or will not take. I can't and won't commit to doing anything other than being honest and hard-working and using my best judgment -- just as Chief Justice Roberts uses his -- to decide cases. You'll just have to trust -- as the man who won the presidential election apparently does -- that I have the brain power and the integrity to do the job. I will never sell my vote or sell out my principles, just as you would not want Justice Alito to sell his vote or sell out his principles.

She would never, EVER be allowed to get away with telling this truth. She'd get hammered mercilessly by Republicans, who'd take this as confirmation that she's a raging liberal. And she would risk offending some fragile egos on the left.

This is what it boils down for me: The people elected the president; the president chooses Supreme Court justices, and unless the Senate finds the nominee unqualified, unethical or so far out of the mainstream as to be wacky, then the president's choice must be respected -- and confirmed.

Thankfully, Ms. Kagan has avoided the abrasive speechmaking this article recommends. The Constitution charges the Senate to provide its advice and consent, before granting a future justice life tenure and the binding power of legal interpretation. Ms. Kagan has no right to join the Supreme Court; the President and the Senate are conferring the highest of privileges. As Ms. Kagan recognizes, the least she can do is answer probing questions with grace and respect.

When asked about her approach to judging, Ms. Kagan responded that "the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is what the law requires." Ms. Kagan assuaged Senators' and citizens' fears that she would use the law as a convenient hook on which to hang social reforms.

This article laments that Ms. Kagan did not respond, "You'll just have to trust -- as the man who won the presidential election apparently does -- that I have the brain power and the integrity to do the job." Perhaps the author is exasperated with the constitutionally required confirmation process, when the candidate is so obviously qualified -- fair enough -- but surely life tenure justifies a few days' interrogation. Or perhaps the author is disappointed that Ms. Kagan intends to restrain her liberal politics, while interpreting the law in good faith. Perhaps the author hoped for the next William Brennan or Thurgood Marshall, and is irritated that President Obama has chosen another Felix Frankfurter.

Whether Ms. Kagan genuinely believes in judicial restraint, or is simply shrewd enough to restrain her opinions until she sits on the bench, she has performed admirably during this confirmation process. She has not been tainted by the brash partisanship of the political branches, because she has avoided exactly the speechmaking this article advocates. I, for one, find such humility from a future justice reassuring.

Thank you, Eva. I couldn't agree with you more. I am impressed that you are supporting the President's right, indeed, obligation, to appoint justices that are consistent with his beliefs.

I remember reading your support of Robert Bork, Samuel Alito, Clarence Thomas, uh...wait...now that I think about it, I DON'T recall your writings supporting republican nominees against a Democratic congress. Please remember this "blog-ette" when a republican is in the White House.

Jefferson Beauregard Sessions is a complete moron. Another black mark on the Reagan Presidency for nominating him as a Federal Judge and kudos to those that stopped him.

As a Senator, he was one of only nine who voted against an amendment to a House bill that prohibited torture of individuals in the custody or under the physical control of the United States Government. He's pro-torture and he then had the nerve to describe the 100,000 people who protested the bogus war in Iraq as not representing American ideals!

This guy is a bitter throwback to KKK supporters in the Senate. Shame on Alabama for sending him to Washington

When Kagan said the commerce clause gives the government the right to pass laws telling citizens what to eat, she threw out the constitution and demonstrated she is unfit to serve on the supreme court.

When Kagan said the commerce clause gives the government the right to pass laws telling citizens what to eat, she threw out the constitution and demonstrated she is unfit to serve on the supreme court.

As a minor official at enrollment in a community college, I daily encounter people of all levels of reading ability. There is a "college standard", believe it or not. Too few possess it among our citizens; too few because strong reading and comprehension would make so much of our societal decision-making more effective and less divisive.

In the article, the writer notes that one answer would be honest and accurate but that political conditions rule out such an answer. She does not at all "recommend" that Ms Kagan make such a statement nor lament that she did not. The fact that truths cannot always be stated directly says much about our society and far less about those who must shape and trim their responses to fit "norms" of a not-so-forthright world.

Much has been made of the benign change in the late Senator Byrd's thinking about African Americans over his long career. Unfortunately, there seems to have been no
evolution in the thinking of Senator Sessions of Alabama. He clearly harbors the attitudes of the Old South, the very ones that kept him from being confirmed as a justice some years ago. Every liberal to him is an "outside agitator" (like Martin Luther King, Jr. the NAACP, and the like) and un-American.

And, frankly, he is the most obnoxious of all the Republican senators on the Judiciary Committee. He seems none too bright as well.

I would say that there is a different approach to these answers then is taken or proposed by the author here that I would like to see. I would love to hear an answer like this: "When I was Dean of Harvard Law school, my responsibilities, and therefore my outlook and approach, were different then those of a Supreme Court Justice. In that role my primary responsibility was safeguarding the integrity of the school and ensuring the welfare of the student body. As such I felt it appropriate to limit the access to students by an organization that discriminates against members of the student body. I represented the school's interests in that case, not the military's or the governments. As Solicitor General I am charged with representing the US Government's position on laws, not objectively evaluating those laws as to whether they meet the consitutationality test that the Supreme Court must apply. Therefore, as in the case of Citizens United, I carried out my responsibilities to the American people as their solicitor general to the fullest of my abilities in that role and defeneded a law that Congress passed on behalf of the people. That is the same commitment and service I will bring as a justice on the court should I be so honored. It is then and only then that I will act as a supreme court justice and objectively view issues through an apolitical, non-interested lens.